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State v. Lewis

Court of Appeals of Ohio, Second District, Montgomery

March 31, 2017

STATE OF OHIO Plaintiff-Appellee
v.
DERRICK LEWIS Defendant-Appellant

         Criminal Appeal from Common Pleas Court, Trial Court Case No. 15-CR-3613

          MATHIAS H. HECK, JR., MEAGAN D. WOODALL, Atty., Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          GEORGE A. KATCHMER, Atty., Attorney for Defendant-Appellant

          OPINION

          HALL, P.J.

         {¶ 1} Derrick Lewis appeals from his conviction and sentence following a no-contest plea to charges of heroin possession and aggravated drug possession.

         {¶ 2} In his sole assignment of error, Lewis contends the trial court erred in overruling his motion to suppress the drugs at issue. More specifically, he asserts that a police officer was not entitled to pat him down during a traffic stop, that his subsequent arrest was invalid, and that all evidence discovered was subject to suppression.

         {¶ 3} The record reflects that Dayton police officer Terry Perdue, the only witness at the suppression hearing, saw Lewis driving a Chevy Trailblazer with very darkly tinted windows. Lewis proceeded to make a lane change without signaling properly before pulling into a drug-store parking lot. Perdue turned his cruiser around and pulled into the parking lot, intending to perform a traffic stop for the turn-signal violation and an apparent window-tint violation. When Perdue approached the Trailblazer, however, Lewis was gone. A passenger in the Trailblazer, Makayla Patton, identified the driver as Derrick Lewis and explained that he was inside the drug store. Perdue ran a computer check on Patton and discovered that she had at least one unspecified warrant and a history of "field interviews" for drugs.

         {¶ 4} While Perdue was dealing with Patton, Lewis exited the drug store. After Patton again identified Lewis as the driver of the Trailblazer, Perdue called him over to the cruiser. Perdue asked Lewis for identification, which Lewis did not possess. Perdue also asked whether Lewis had been driving, which Lewis denied. At that point, Perdue placed one hand on Lewis' back in an attempt to perform a pat down before placing him in the cruiser and running a computer check on him. Perdue testified that the attempted pat down was for officer safety to make sure Lewis did not have a weapon. Perdue was concerned about possible weapons primarily because of passenger Patton's prior drug-related field interviews.

         {¶ 5} In any event, Lewis fled on foot when Perdue touched his back to start the pat down. Lewis ran into the middle of the street and fell. Perdue caught him there, put handcuffs on him, and placed him under arrest for obstructing official business based on his flight from the traffic stop. During a search incident to arrest, Perdue found Percocet, Xanax, heroin, and $1, 500 cash in Lewis' pants pockets. The Trailblazer was inventoried and towed, but the suppression-hearing transcript does not identify what additional evidence was found in it.

         {¶ 6} Lewis ultimately was charged on four drug-related counts, and he moved to suppress all evidence discovered in connection with the traffic stop. Based on the testimony presented, the trial court overruled the motion. In relevant part, it reasoned:

In the case at bar, Perdue credibly testified that he had observed the traffic violations. Further, he believed that a pat-down for officer safety was necessary because the passenger in the car had been linked to drug activity through the field identification cards on her. Perdue intended to place Defendant in his cruiser while he ran Defendant's identification information. Based on the foregoing the attempted pat-down of Defendant was justified. Further, after Defendant fled the scene, the search of his person incident to his arrest was justified.
Finally, Defendant objects to the search of his Trailblazer because it was conducted without a warrant. Perdue testified, however, that the search was conducted in accordance with the City of Dayton's tow policy, which provides for an inventory search of impounded vehicle[s]. Defendant was an unlicensed driver, and since he was being arrested, the Trailblazer was impounded. * * *

(Doc. #20 at 4).

         {¶ 7} Lewis later pled no contest to one count of heroin possession, a fourth-degree felony, and aggravated drug possession, a fifth-degree felony. The ...


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